Citation Nr: 20002297 Decision Date: 01/14/20 Archive Date: 01/10/20 DOCKET NO. 17-17 225A DATE: January 14, 2020 ORDER Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected diabetes mellitus (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus has required treatment with insulin and a restricted diet, but not regulation of activities. 2. The Veteran’s service-connected diabetes mellitus does not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018); Rice v. Shinseki, 22 Vet. App. 447. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1986 to September 1992 and from November 2004 to January 2006. He was afforded a Board hearing before the undersigned in November 2019. A copy of the transcript is of record. The matter of entitlement to a TDIU was raised by certain findings made by VA examiners, as well as by several statement made by the Veteran. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability for an initial or increased rating, it is part of the claim for benefits for that underlying disability. At his November 2019 hearing for the increased rating claim on appeal, the Veteran raised a claim for a TDIU. Consequently, the matter of entitlement to a TDIU (and on which considers all of the service-connected disorders) is properly before the Board in this appeal. Id. 1. Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran asserts that his service-connected diabetes mellitus is more severe than his current disability rating reflects. At his November 2019 hearing, he testified that his diabetes symptoms required insulin daily and prescription medication. He also testified that he suffers from complications as a result of his multiple service-connected disabilities that are related to his diabetes. His service-connected diabetes mellitus is currently rated as 20 percent under Diagnostic Code 7913. A 20 percent evaluation is warranted when insulin and a restricted diet, or; an oral hypoglycemic agent and a restricted diet is required. A 40 percent rating is assigned when insulin, a restricted diet, and regulation of activities are required. A 60 percent evaluation is warranted when diabetes mellitus requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes mellitus requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. “Regulation of activities” has been defined as the situation where a veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining “regulation of activities” as used by VA in 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. See Comacho v. Nicholson, 21 Vet. App. 360 (2007). The criteria for rating diabetes mellitus are conjunctive, meaning that each element of the criteria is needed to meet the requirements for the specified evaluation. Id. Complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. 38 C.F.R. § 4.119, Note (1). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. A September 2015 VA examination report reflects the Veteran’s diabetes was managed by diet, oral medication, and daily insulin injection but did not result in restricted activities or episodes of diabetic ketoacidosis or hypoglycemia which required hospitalization. The examiner further opined that the Veteran’s diabetes mellitus did not restrict his ability to work. A February 2018 VA examination report noted similarly that the Veteran’s diabetes was managed by diet, oral medication, and daily insulin injection. The examiner noted the Veteran did not have restricted activities or episodes of diabetic ketoacidosis or hypoglycemia which required hospitalization as a result of his diabetes. The examiner further opined that the Veteran’s diabetes mellitus did not restrict his ability to work. Medical treatment records reflect the Veteran is an uncontrolled diabetic who uses insulin and oral medication for diabetic control. Treatment records also noted the treating physician recommended diet and regular exercise for weight loss to control diabetes symptoms. There is no evidence of restricted activity or restricted diet other than diet control to manage weight. After careful consideration of the medical evidence of record, the Board finds that a rating in excess of 20 percent for diabetes is not warranted. The record reflects that the Veteran’s diabetes has required treatment including insulin and a restricted diet but not restriction or regulation of activities. As noted above, “regulation of activities” as used by Diagnostic Code 7913 is defined as a veteran having been prescribed or advised to avoid strenuous occupational and recreational activities. See 61 Fed. Reg. 20,440, 20,446 (May 7, 1996). The objective medical evidence of record does not suggest that the Veteran was ever “prescribed or advised to avoid strenuous occupational and recreational activities” as is required for the regulation of activities needed for a 40 percent rating under Diagnostic Code 7913. In fact, the Veteran’s treating physician encouraged the Veteran to exercise during a diabetes management assessment as reflected in medical treatment notes. Additionally, both VA examination reports of record reflects an assessment that the Veteran’s diabetes mellitus does not require any regulation of activities per VA regulation. The Board finds both the VA medical examiner’s opinions are both well-reasoned and thorough, having considered the entire record, including the Veteran’s medical history, and provides specific medical evidence for the opinions rendered. As such, both VA medical opinions warrant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, there is no indication of ketoacidosis or hypoglycemic episodes requiring hospitalization or twice a month visits to a diabetic care provider. For these reasons, there is no basis upon which to assign an initial rating in excess of 20 percent for diabetes mellitus under Diagnostic Code 7913. The Board has also considered the Veteran’s lay statements and does not dispute his reports of daily insulin use, permanent dependence of insulin, and restricted diet to manage his diabetes. Although the Veteran is competent to describe observable symptoms of diabetes, he is not competent to opine as to the degree of disability, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Thus, the Veteran’s diabetes mellitus has not more closely approximated the criteria for a rating in excess of 20 percent at any point in the appeal period. Accordingly, a rating in excess of 20 percent for diabetes mellitus is not warranted, and there is no basis for staged rating of the Veteran’s disability. 2. Entitlement to total disability rating based on individual unemployability due to service-connected diabetes mellitus (TDIU). Pursuant to 38 C.F.R. § 4.16 (a), a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). When considering whether the Veteran’s disabilities meet this requirement, disabilities affecting a single body system will be considered as one disability. Id. At his November 2019 hearing, the Veteran specifically raised the matter of unemployability as due to his service-connected diabetes mellitus. As an increased rating claim for such disability is currently on appeal, the current claim for a TDIU rating is limited only to the context of whether his diabetes mellitus precludes him from obtaining or maintaining a substantially gainful occupation. See Rice, 22 Vet. App. at 447. For the appeal period, the Veteran’s service-connected disabilities included posttraumatic stress disorder evaluated as 30 percent, diabetes mellitus evaluated as 20 percent, middle finger fracture evaluated as 10 percent, and right middle finger scar evaluated as noncompensable. His combined rating was 50 percent. As such, the Veteran did not meet the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16 (a) for the appeal period. Even so, the Board may consider an extra-schedular TDIU if the Veteran’s service-connected disability, while not reaching the threshold criteria, nonetheless rendered him unemployable. The Board finds it is not factually ascertainable that the Veteran’s service-connected disability rendered him unable to secure and follow a substantially gainful occupation. Specifically, the evidence of record reflects that his diabetes mellitus disability has not impacted his ability to work, as supported by both the September 2015 and February 2018 VA examiners’ reports. Consequently, the Board finds that it is not factually ascertainable that the Veteran’s service-connected diabetes mellitus rendered him unable to secure or follow a substantially gainful occupation, and an award of TDIU is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to a TDIU. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Finally, the Board notes the Veteran representative’s assertion that the Veteran’s diabetes symptoms combine to create additional disabilities which cause additional severity of symptoms. In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that “[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities.” Here, however, the Veteran representative contends only that the Veteran’s diabetes symptoms create disabilities which are non-service connected. There is no indication that any diabetes symptoms have not been attributed to specific service-connected disabilities, and the Board finds no additional diabetes symptoms related to the combination of the Veteran’s service-connected disabilities. See Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016). Accordingly, the Board concludes that this is not an exceptional circumstance in which extra-schedular consideration is required. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.